June 30, 2010

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A clearer GOP political line of attack is now emerging on Elena Kagan's nomination: that she supports unchecked government powers.

Believing they have been buoyed by an exchange with Sen. Tom Coburn (which has been trumpeted by the Drudge Report) about whether the government can mandate what people eat, Republicans are trying to make the case that Kagan believes that the Constitution's Commerce Clause gives Congress the authority to regulate almost anything it wants.

“I am concerned that she views the power of the federal government to be essentially without limit,” Sen. John Cornyn (R-Texas) said. “She said yesterday that the courts would defer to Congress, and Congress knows no limit to its power grabs, as we’ve seen recently.”

"Anything the federal government tells you to do you’re going to do as long as there’s a commerce nexus," Coburn said, in his characterization of Kagan's thinking.

Further, Republicans are hitting Kagan on not fully divulging her views, with Senate Minority Whip Jon Kyl saying that her not being "forthright" means it'll be tough for him to support her.

"By the same token, I think she’s been very adept at avoiding very specific questions that could result in criticism of her point of view," Kyl said. "And yet at the end of the day I’m not sure that that does her more good than harm because it does result in the feeling among some that she is not being completely forthright and that there is more to know that she’s not telling. That doesn’t help her confirmation, in my view."

Still, Kyl acknowledged that she's said as much as the three most recent Supreme Court nominees - and Cornyn conceded that Kagan's confirmation was more or less a done deal.

"I assume she will be" confirmed," Cornyn told reporters, and also called her "soon-to-be-justice" Kagan.

And that may mean the arguments on both sides now could be more political posturing than anything else.